The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Sandals Royal Bahamian has “good prospects” for succeeding with an appeal over a Judicial Review action that seeks to eliminate the trade union responsible for the recent strike vote against it.

The Court of Appeal’s encouraging words for the resort were contained in yesterday’s judgment, which granted it extra time in which to appeal a previous decision by the Chief Justice, Sir Michael Barnett, to throw out the Judicial Review action.

That action, which challenges the “very basis” for the Bahamas Hotel, Maintenance and Allied Workers Union’s (BHMAWU) existence, is seeking a court order that will force the Registrar of Trade Union’s to cancel its registration.

Sandals Royal Bahamian’s case is that the BHMAWU has breached the Industrial Relations Act on two counts - failing to hold nominations for its executive positions, and the non-publication of its annual returns.

And it is alleging that the Registrar of Trade Unions (the director of labour), despite discovering these irregularities himself and giving the BHMAWU two months to correct the problems, has failed to take action over the union’s continued non-compliance.

The other thrust of Sandals Royal Bahamian’s action is that the union’s executives were not elected in accordance with the BHMAWU’s constitution, and it is therefore seeking a Supreme Court declaration that they have no authority to act on its behalf.

The Judicial Review action thus explains why Sandals Royal Bahamian is refusing to negotiate an industrial agreement with the trade union, an issue that is at the heart of the BHMAWU’s complaints.

Apart from the union’s entire existence being in question, the resort’s position is that it is impossible to negotiate with persons who may not have been lawfully elected, and thus may have no authority to bind the BHMAWU in an industrial agreement.

The Court of Appeal’s verdict yesterday found that while there was “considerable delay” on Sandals part in filing its appeal, neither the union nor the Registrar of Trade Unions was prejudiced by this.

“Further, the intended appellant’s [Sandals] prospects of success on appeal are good,” the ruling, written by Court of Appeal president Anita Allen, said.

Her court will now hear Sandals’ appeal on the merits of its Judicial Review case, with success here then sending the matter back to the Supreme Court for full determination.

Yesterday’s events mean the Judicial Review action is now back on track, and the Court of Appeal’s ruling could not have come at a better time for Sandals Royal Bahamian following a week in which some 187 members of its staff voted in favour of strike action.

Tribune Business can also reveal that Sandals Royal Bahamian’s attorneys, Lennox Paton, on Friday obtained a Supreme Court injunction preventing the union and its members following through with strike action.

This newspaper understands that Sandals’ attorneys argued that given the pending proceedings in the Court of Appeal, Section 77 of the Industrial Relations Act prevented the union from taking strike action.

Both sides are due back before the Supreme Court on Thursday in relation to the injunction, with Sandals hoping it will remain in place given the continuing legal battle before the Appeal Court.

Obie Ferguson, president of the Trades Union Congress (TUC), with which the BHMAWU is affiliated, and the latter’s attorney, did not return Tribune Business’s call seeking comment yesterday.

The Court of Appeal, in its ruling yesterday, set out key details of the Sandals-BHMAWU dispute that have never been revealed before.

Referring to the resort’s Judicial Review filing, which took place on May 9, 2012, the judgment noted that Sandals wanted an Order forcing the Registrar of Trade Unions “to cancel the registration of the [union”.

It also wanted “a declaration that the purported members of the Executive Council were not elected in accordance with the union’s constitution, and a declaration that the purported members of the Executive Council had no lawful authority to act on its behalf”.

The Chief Justice rejected the action because it was not filed promptly, while Sandals Royal Bahamian “did not have a sufficient interest” as the case related to internal union issues.

Lennox Paton said the appeal’s filing was delayed by illness to a key member of staff, and argued that the matter was in the public interest.

One of its associates, Jody Wells, alleged that Sandals’ Judicial Review application would impact “any employer who is engaged in discussions with a purported union which he is aware has not complied with statutory requirements.

“The learned Chief Justice’s ruling bars any remedy to such employer to challenge the standing of such a union as, according to the Chief Justice’s ruling, such an employer has no locus standi.”

The judgment revealed that while the Registrar of Trade Unions issued warning letters in 2009 to the BHMAWU over its non-compliance with the Industrial Relations Act, he failed to follow through with enforcement.

Sandals Royal Bahamian, though, only became aware of the issues involving the union’s “non-compliance with its constitution and the provisions of the Industrial Relations Act on February 8, 2012.

The resort received no response to its inquiries with the Registrar, and the latter did not “exercise his discretion to revoke” the BHMAWU’s registration prior to the Judicial Review’s filing.

While the nine week delay to the action’s filing was not deemed excessive by the Court of Appeal, it did not accept the reason offered by Lennox Paton.

Still, it found that the merits of Sandals Royal Bahamian’s case needed to be considered.

“The bargaining agent for the employees [of Sandals] failed to hold nominations, and further failed to publish its annual returns as required by the Act, and that notwithstanding such determination being made by the Registrar of Unions, he failed to take action to cancel the registration of the union pursuant to section 15 of the Act,” the Court of Appeal said.

It added that the Chief Justice appeared to mix the events in 2009 and 2012 in determining when the Judicial Review should have been filed, with the resort only becoming aware of the union’s problems in the latter year.

“Simply to say that non-compliance by the union with its constitution is a matter for its members, and non-compliance with the Act is a matter for [the Registrar], may not be cogent enough reasons for saying that [Sandals] did not have a sufficient interest,” the Court of Appeal said.

Sandals has been represented in court by Brian Simms QC and Simone Fitzcharles.